The price of a poor performer

The option to use legal measures to discipline poorly performing staff is open to employers but it is a route many would rather not travel.

So says the recent Tough Love survey, carried out by Employers’ Law’s sister title Personnel Today, in association with HR consultancy Chiumento. It found that almost half (46%) of the 800 respondents said they feel the law works against employers when dealing with poor performers.

The findings reflect a concern among a sizeable number of HR managers that the statutory requirements for disciplinary, dismissal and grievance procedures can put an unfair administrative burden on managers and prevent organisations taking the swift action they feel is needed.

“Quite rightly, there is protection for employees, and the employer has to build up a body of evidence if an employee is to be disciplined or dismissed,” says Doug Crawford, head of engagement at Chiumento.

“But this procedure can sometimes seem very drawn out,” he adds.

Managers and HR staff, already under pressure from a heavy workload, can often feel constrained by the formal processes they are required to go through, he says.

“It’s time they would rather spend on other things. It requires discipline and, when faced with it, they often don’t have the appetite.”

The statutory requirements for disciplinary, dismissal and grievance procedures form part of the Employment Act 2002 (Dispute Resolution)Regulations, which came into force on 1 October 2004, replacing by law codes of practice laid down by dispute resolution body Acas.

“They oblige employers to take three standard steps when disciplining employees,” explains Chris Davies, a professional support lawyer at law firm Halliwells.

Employees called to a meeting to discuss their poor performance must be given a full written explanation of why they have been called, and given sufficient time to prepare for the hearing.

At the hearing, the employer must lay out their case and give the employee adequate opportunity to defend themselves. There is also an onus on the employer to remind the employee that they can be accompanied by a work colleague or union representative.

Once the employee has been advised of the outcome, they have the right to appeal, if possible to someone more senior.

Red tape

Beyond this, employers have a duty to support the employee in improving in the areas where they are deemed to have fallen short.

“If an employer doesn’t follow these procedures, any action they take may be found to be unfair,” says Davies.

For many organisations with good HR practices, the law simply adds structure to the performance management procedures they were already carrying out.

And while there is general understanding among HR managers that these laws exist to safeguard employees from unscrupulous employers, there is also an element of dissatisfaction with the red tape they generate.

“It can be difficult to manage performance because there is so much protection for employees,” says Kate Davies, an HR adviser at housing association LHA-ASRA Group. “It’s good that there is a mechanism for protecting employees, but as soon as you go down the disciplinary route, it gets complicated.”

At financial services company Scottish Widows, HR business partner Derek Liddell says the procedures can be frustrating when HR is trying to deliver other services to the business.

“In some cases, we can spend eight or nine months trying to coax an employee through the procedure when it is clear they have no intention of trying to improve,” he says. “They are happy to take the money while doing the minimum, and we know we don’t want them in our business.”

But try to take immediate action with a poor performer when you think it is justified, and there is a danger the company may have to face legal action, says Liddell.

Andreanna Eyre, head of HR and training at financial services company Network Data, shares these frustrations. “There are times when you encounter a member of staff and regardless of the time you invest in them, you know they won’t change and that you are wasting your time,” she says. “Sometimes, I wish we could just cut our losses and say ‘you are fired’.”

The growth in the use of formal processes to deal with poor performers is also revealed in the Tough Love survey, with 53% of respondents reporting they have increased their use of disciplinary and grievance procedures.

For Richard Wainer, a senior policy adviser at the CBI, these figures indicate a worrying trend.

“In general, employers are concerned that disputes become formalised too early,” he says.

“There is less opportunity to resolve matters in an informal manner because employers feel they must follow the letter of the law or face legal action.”

While sending official letters out to employees may seem confrontational, employers can’t leave themselves open, he says.

Fear of legal action

The fear of legal action felt by employers when dealing with poor performance also comes across in the survey. More than a quarter (27%) said the main reason for poor performance not being dealt with promptly was fear of legal action. This figure rose to 37% among respondents working in the public sector.

Davies says this finding reflects the nagging doubts HR managers experience when they consider disciplining or dismissing an employee.

They start to question whether they have given a person enough opportunities to improve or provided sufficient support or training. If an employee suffers from a disability that is causing them not to hit the mark, there will be uncertainty over where reasonable adjustments have been made.

“The law doesn’t act against employers, but it does present them with lots of hurdles. Some employers might decide they don’t want to take the risk, so they back off from the final decision and give the employee another chance,” says Davies.

But Helen Kalyan, HR manager at Novotel London West, thinks it is the vagaries of employment law that cause the uncertainty.

“There are a lot of grey areas in employment law. Most issues of poor performance are to do with attitude, which is a hard thing to measure.

“We see cases overturned on appeal because there are different interpretations, and our fears are exacerbated by the increased payouts that are awarded,” she says.